UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NEW CENTURY FOUNDATION,

Plaintiff, Civil Action No. 24 - 1612 (SLS) v. Judge Sparkle L. Sooknanan SMALL BUSINESS ADMINISTRATION, et al.,

Defendants.

MEMORANDUM OPINION

New Century Foundation (New Century or NCF) runs an online publication called

“American Renaissance” that advocates for white supremacy and racial separation. The Court is

shocked and appalled by the views espoused by New Century. The record before the Court shows

that New Century “promotes pseudo-scientific studies and research that purport to show the

inferiority of blacks to whites—although in hifalutin language that avoids open racial slurs and

attempts to portray itself as serious scholarship.” AR 70, ECF No. 34. Writers for American

Renaissance have proclaimed that “[s]o long as blacks and whites continue to live together, whites

will pay the high price of sharing their society with an inveterately violent racial minority.” AR

225. They have written that America “achieved character and greatness precisely because of

discrimination”; that “people and races are not interchangeable, and . . . failure to discriminate

would produce a warring mix of incompetents and unassimilables.” Id. And they have written that

“[f]ar-seeing whites should think carefully about arguments against discrimination in principle

because discrimination . . . is necessary to our survival.” Id. At oral argument, New Century shockingly said much of the same, telling this Court that

science supports the organization’s views about the general inferiority of blacks, that whites and

other races do not get along when they are forced into association, and that diversity is not always

a strength. Mot. Hr’g Tr., ECF No. 39. Such odious views have long been rejected as inconsistent

with our Nation’s fundamental constitutional design and as scientifically unsupportable. See, e.g.,

President Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863) (Our Nation was “conceived

in liberty, and dedicated to the proposition that all men are created equal.”); Brown v. Bd. of Ed.,

(1954) (holding that “in the field of public education the doctrine of ‘separate

but equal’ has no place”); UNESCO, THE RACE QUESTION, at 8 (1950)

https://unesdoc.unesco.org/ark:/48223/pf0000128291 [https://perma.cc/M3UW-492C] (“For all

practical social purposes ‘race’ is not so much a biological phenomenon as a social myth.”). To

state the obvious, racial discrimination and racial segregation are unlawful, and this Court is

stunned to encounter an organization that so brazenly embraces and disseminates such abhorrent

writings.

New Century is before the Court because it filed this lawsuit to recover $51,600 from the

federal government. During the COVID-19 pandemic, New Century received a loan guaranteed

by the Small Business Administration (SBA) pursuant to the Paycheck Protection Program and

the Coronavirus Aid, Relief, and Economic Security Act. New Century later sought loan

forgiveness but the SBA denied its application, finding that New Century had engaged in

employment discrimination in violation of federal law. New Century argues that the SBA’s loan

forgiveness denial violates the Administrative Procedure Act and the First Amendment. While the

views expressed by New Century are reprehensible and cannot be reconciled with our Constitution

and bedrock Supreme Court precedent, the administrative record, as it exists currently before the

2 Court, does not support the agency’s decision. Thus, the law mandates that this Court vacate and

remand the decision to the SBA for further proceedings.

BACKGROUND

A. Statutory and Regulatory Background

“In response to the COVID-19 ‘public health emergency,’ Congress enacted the

Coronavirus Aid, Relief, and Economic Security (CARES) Act.” Gordon Coll. v. U.S. SBA, No.

23-cv-614,

, at *1 (D.D.C. May 28, 2025) (cleaned up) (citing

Stat. 281 (2020)). Congress enacted the CARES Act “to help address the

severe economic consequences caused by the pandemic.” United States v. Adams,

(D.C. Cir. 2025) (cleaned up). “One component of the Act was the Paycheck Protection

Program,” (PPP).

at 933 (citing

(a)(36)). The PPP “provided loans administered

by the Small Business Administration that were ‘intended to provide economic relief to small

businesses nationwide adversely impacted’ by the pandemic.”

(quoting Paycheck Protection

Program,

, 20,811 (Apr. 15, 2020)). It did this by providing “potentially

forgivable loans” to small businesses. In re Gateway Radiology Consultants, P.A.,

(11th Cir. 2020) (citing

(a)(36)(D)(I)).

“Rather than create a loan program from scratch, the CARES Act established the PPP as a

temporary amendment to § 7(a) of the Small Business Act.” 35 State St. Hotel Partners, LLC v.

Loeffler, No. 24-cv-747,

, at *5 (D.D.C. Mar. 20, 2025) (cleaned up).

Section 7(a) gives the SBA the “general authority to issue loans to qualifying small businesses and

sole proprietorships, including by guaranteeing loans made by private lenders.” WP Co. LLC v.

U.S. SBA,

, 7 (D.D.C. 2020) (citing

(a);

(a));

see also United States v. Kimbell Foods, Inc.,

, 719 n.3 (1979) (“The SBA prefers to

guarantee private loans rather than to disburse funds directly.”). And “[t]he PPP temporarily

3 expanded the types of entities to which SBA could make covered loans to include non-profit

organizations, independent contractors, and self-employed individuals, and it permitted SBA to

guarantee all such loans.” WP Co. LLC, 502 F. Supp. 3d at 7 (citations omitted).

“Applicants could apply for a loan by submitting an online application form directly to an

authorized lender or a lender service provider, which would process the loan application on behalf

of the Administration.” Adams,

(citing

(a)(36)(F)(ii)(I); Paycheck

Protection Program, 85 Fed. Reg. at 20,814). This application process “relied heavily on self-

certifications by the applicants to determine eligibility.” Id.; see also 15 U.S.C. § 636m(h)(2) (“A

lender may rely on any certification or documentation submitted by an applicant for an initial or

second draw PPP loan[.]”); In re Gateway Radiology Consultants, P.A.,

(saying

an SBA interim final rule “allowed lenders to rely on the borrower’s certifications and assured

them that the SBA would hold lenders harmless for any borrower error or misrepresentation”

(citing Paycheck Protection Program, 85 Fed. Reg. at 20,812, 20,816)).

“On the back end, the PPP allowed a recipient to apply to have its loan forgiven.” 35 State

St. Hotel Partners, LLC,

, at *6. “To obtain forgiveness, a borrower

must submit a PPP loan forgiveness application with supporting documentation to its lender.”

Gordon Coll.,

at *6 (citing 15 U.S.C. §§ 636m(e)–(f)). “Within 60

days of receiving the application, the lender must ‘issue a decision on the . . . application.’” Id.

(quoting 15 U.S.C. § 636m(g)). “If the borrower is determined to be entitled to loan forgiveness,

the lender submits a request for payment to SBA, and SBA, within 90 days, must ‘remit to the

lender an amount equal to the amount of forgiveness, plus any interest accrued through the date of

payment.” Id. (quoting 15 U.S.C. § 636m(c)(3)).

4 “‘In light of the structure of the PPP . . . , in which loans and loan forgiveness are provided

based on the borrower’s certifications and documentation provided by the borrower,’ SBA

established a series of ‘procedures and criteria through which SBA will review’ a borrower’s

eligibility for a PPP loan, calculation of the loan amount, use of loan proceeds, and entitlement to

loan forgiveness ‘to ensure that PPP loans are directed to the entities Congress intended, and that

PPP loan proceeds are used for the purposes Congress required.’” Id. at *6-7 (quoting Business

Loan Program Temporary Changes; Paycheck Protection Program—SBA Loan Review

Procedures and Related Borrower and Lender Responsibilities,

, 33,012

(June 1, 2020)). “SBA may undertake a review at any time in SBA’s discretion.” Business Loan

Program Temporary Changes; Paycheck Protection Program, 85 Fed. Reg. at 33,012; see also 15

U.S.C. § 636m(k) (SBA “shall issue guidance and regulations implanting” loan forgiveness). “‘If

SBA determines that a borrower is ineligible for the PPP loan, SBA will direct the lender to deny

the loan forgiveness application,’ and, ‘[f]urther, if SBA determines that the borrower is ineligible

for the loan amount or loan forgiveness amount claimed by the borrower, SBA will direct the

lender to deny the loan forgiveness application in whole or in part, as appropriate.’” Gordon Coll.,

, at *7 (quoting Business Loan Program Temporary Changes;

Paycheck Protection Program—SBA Loan Review Procedures and Related Borrower and Lender

Responsibilities, 85 Fed. Reg. at 33,012).

When it comes to eligibility requirements, an SBA interim final rule “provides guidance

that for purposes of the [PPP], nonprofits must meet their nondiscrimination obligations under

existing Federal laws and Executive Orders.” Business Loan Program Temporary Changes;

Paycheck Protection Program—Nondiscrimination and Additional Eligibility Criteria,

, 27,288 (May 8, 2020); see also

(providing that the SBA “shall issue

5 regulations to carry out” the PPP without undergoing prior notice and comment review). One such

antidiscrimination law is Title VI of the Civil Rights Act of 1964, which provides that “[n]o person

in the United States shall, on the ground of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Title VI also authorizes and

directs federal agencies that “extend Federal financial assistance to any program or activity, by

way of grant, loan, or contract” to issue “rules, regulations, or orders of general applicability”

effectuating Title VI, with some limited exceptions. 42 U.S.C. § 2000d-1. The SBA has

accordingly prohibited certain recipients of federal funding from engaging in various forms of

race-based employment discrimination. See

, 112.4, 112.7(a), 113.1, 113.3(b),

113.3(d).

B. Factual Background

Around June 10, 2020, New Century executed an agreement with Capital One, N.A. for a

PPP loan totaling $51,600. Compl. ¶ 12, ECF No. 1; AR 33, ECF No. 34. On September 21, 2021,

New Century applied to Capital One for forgiveness of that loan. Compl. ¶ 13. On November 1,

2021, Capital One informed New Century that its application for forgiveness had been denied

because New Century had engaged in employment discrimination in violation of various SBA

regulations. Compl. ¶ 14.

On November 3, 2021, New Century emailed the SBA to say that it disputed Capital One’s

denial. Compl. ¶ 15. The next day, the SBA told New Century that Capital One had forwarded

New Century’s loan forgiveness application and Capital One’s decision to the SBA for review.

Compl. ¶ 16. On November 5, 2021, New Century’s counsel sent letters to officials at Capital One

asking it to provide evidence of discrimination, but it never responded. Compl. ¶ 17. Later, the

6 SBA asked Capital One to further explain its denial, and Capital One responded by citing the text

of a New Century job posting. Compl. ¶ 18. The job posting was “for a full-time reporter for its

monthly online magazine.” AR 228, 56–57. It sought “applicants with a ‘[s]trong commitment to

race realism and white advocacy,’” and it requested “that applicants submit a cover letter with ‘[a]

brief description of applicant’s political views and how he came to them’ and ‘why the applicant

believes he would be a good fit for American Renaissance.’”

New Century claims that “all

links to the job posting were deleted not later than 2017—well before NCF applied for its PPP

loan—and that the text itself was left on the website through inadvertence and could not be found

through any ordinary form of site access and search.” Compl. ¶ 18; AR 205.

On December 29, 2021, the SBA told Capital One that New Century’s loan would not be

forgiven. Compl. ¶ 19; AR 1–2. And on January 2, 2022, the SBA informed New Century that it

was ineligible for forgiveness of its PPP loan because it failed to comply with 13 C.F.R. Parts 112,

113, and 117. Compl. ¶ 19; AR 189. New Century appealed the SBA’s decision to the SBA’s

Office of Hearings and Appeals. Compl. ¶ 20; AR 3–5. On June 16, 2022, an administrative law

judge (ALJ) found that New Century was “ineligible for the amount [of] PPP loan received due to

discrimination despite certifying on the Form 2483 [that] its business agreed not to discriminate in

any business practice, including employment practices and services to the public on the basis of

categories listed in 13 C.F.R., Parts 112, 113, and 117 of SBA regulations, rules, policy, federal

statutes and case law.” Compl. ¶ 20; AR 189.

New Century filed a petition for reconsideration, arguing that the ALJ’s order lacked any

basis in fact or law and that it amounted to an unconstitutional restriction on protected speech.

Compl. ¶ 22; AR 204. On July 8, 2022, the ALJ denied New Century’s petition for reconsideration,

largely on the same grounds cited in the initial opinion. Compl. ¶ 23; AR 212. On July 19, 2022,

7 New Century sent a letter to the Administrator of the SBA asking her to reverse the ALJ’s denial.

Compl. ¶ 23. The Administrator did not respond to the letter.

C. Procedural Background

On May 31, 2024, New Century sued the SBA and its Administrator in this Court alleging

that the SBA’s denial should be vacated and set aside under Section 706 of the Administrative

Procedure Act (APA) because it was arbitrary and capricious,

(2)(A), and contrary

to constitutional right, power, privilege, or immunity,

§ 706(2)(B). See Compl. ¶¶ 33–56. 1 Both

Parties moved for summary judgment. See Pl.’s Mot. Summ. J., ECF No. 24; Defs.’ Mot. Summ.

J., ECF No. 26. And both motions are ripe and ready for review. See Defs.’ Opp’n, ECF No. 27;

Pl.’s Opp’n, ECF No. 28; Pl.’s Reply, ECF No. 29; Defs.’ Reply, ECF No. 32; Defs.’ Notice in

Resp. to Order, ECF No. 40; Pl.’s Resp. to Defs.’ Notice, ECF No. 42.

LEGAL STANDARD

“Although Federal Rule of Civil Procedure 56 requires a court to grant summary judgment

‘if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law,’” Pol’y & Rsch., LLC v. U.S. Dep’t of Health & Hum.

Servs.,

(D.D.C. 2018) (quoting Fed. R. Civ. P. 56(a)), “in APA cases,

the summary judgment standard functions slightly differently, because ‘the reviewing court

generally . . . reviews the [agency’s] decision as an appellate court addressing issues of law,’”

(quoting Henry v. Sec’y of Treasury,

(D.D.C. 2017)). “In other words,

1 The Complaint also alleges that the SBA failed to follow both statutory and regulatory procedures required by law, see Compl. ¶¶ 27–32, and that the SBA’s denial exceeded its statutory authority, see

¶¶ 57–58. But neither of these claims are addressed in New Century’s Motion for Summary Judgment. See Pl.’s Mot. Summ. J., ECF No. 24. So they have been waived. See Oceana, Inc. v. Pritzker,

(D.D.C. 2014) (“[A] plaintiff’s failure to raise arguments or theories in its motion for summary judgment results in waiver of those arguments.”).

8 summary judgment ‘serves as the mechanism for deciding, as a matter of law, whether the agency

action is supported’ by the record ‘and otherwise consistent with the APA standard of review.’”

Henry,

(quoting Remmie v. Mabus,

(D.D.C. 2012)).

“Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is

supported by the administrative record, whereas the function of the district court is to determine

whether or not as a matter of law the evidence in the administrative record permitted the agency

to make the decision it did.” Sierra Club v. Mainella,

(D.D.C. 2006)

(cleaned up).

DISCUSSION

New Century argues that the SBA’s decision denying loan forgiveness was arbitrary and

capricious in violation of the APA. See Pl.’s Mot. 8; Compl. ¶ 33. Because the SBA appears to

abandon its prior rationale for the decision and relies instead on post hoc explanations, the Court

vacates and remands the matter to the agency for further proceedings. 2

“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is

not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. v. State Farm Mut.

Auto. Ins. Co.,

(1983). Courts “review the administrative record to determine

whether the agency’s decision was arbitrary and capricious, and whether its findings were based

on substantial evidence.” New LifeCare Hospitals of N.C., LLC v. Becerra,

(D.C. Cir. 2021). A reviewing court will “uphold a decision of less than ideal clarity if the agency’s

path may reasonably be discerned.” Amerijet Int’l, Inc. v. Pistole,

, 1351–52 (D.C.

Cir. 2014) (quoting State Farm,

). But it “cannot uphold agency action based on

2 Because the Court agrees that the SBA’s decision violates the APA, it declines to address New Century’s First Amendment arguments.

9 reasons or rationalizations ‘other than that expressed by the agency,’” Toledo Hosp. v. Becerra,

, 26 (D.D.C. 2021) (quoting Catholic Healthcare W. v. Sebelius,

(D.C. Cir. 2014)).

The SBA opinion is not a model of clarity. Its analysis section begins by identifying the

issue presented as a purely legal question: “Can the CARES ACT, PPP policy, legislation/ statutes,

rules, and regulations promulgated by Congress and implemented by the Small Business

Administration (SBA) exclude, restrict, or otherwise deem ineligible certain businesses who

discriminate or engage in illegal discriminatory activities to receive PPP loans and/or Forgiveness?

The answer is yes.” AR 224. It then immediately jumps to the proposition that New Century’s

articles “exhibit discrimination, as well as proclaiming and enforcing separation of the races.” AR

225. To support this statement, it seems to point to New Century’s job posting, hypothesizing

about what would happen if a person of color were to apply:

The inference of discrimination in the posting makes it clear that protected class individuals would be denied, excluded, discouraged, and restricted from applying, and thus NCF engaged in illegal discriminatory employment practices.

It then pivots back to New Century’s articles, providing bulleted summaries of four of them.

See

From there, the opinion begins discussing Title VI, Title VII, and Virginia

antidiscrimination law. See AR 225–27. And then the opinion returns to the original issue

presented by discussing a line of Spending Clause and First Amendment cases. See AR 227.

After those confusing opening pages, the SBA finally begins discussing the job posting

that it claims “exhibit[ed] discrimination.” AR 225; see AR 228–29. It explains that the posting

sought applicants with a “[s]trong commitment to race realism and white advocacy” and asked for

a cover letter with “[a] brief description of [the] applicant’s political views and how he came to

them” and “why the applicant believes he would be a good fit for American Renaissance.” AR

228. After stating that New Century’s mission of white advocacy makes it clear that it “supports

10 discrimination,” the SBA concludes without any citation that “NCF if not by direct evidence,

clearly has engaged in discriminatory employment practices.”

It backs this up by stating that

New Century’s job posting “clearly aligned itself with the knowledge and beliefs consistent with

the organization’s mission.”

On the next page, the SBA begins to cite to case law and regulations. See AR 229. It begins

by pointing to cases allowing plaintiffs to bring discrimination claims where they have been

deterred from applying. See

(citations omitted). It then states that “[t]hese cases are analogous

to the similar scheme New Century Foundation perpetuated by its discriminatory job

announcement” because of vague references to individuals who were deterred from applying—

without ever actually finding that any individuals were so deterred. Id.; see also

(“[T]he exclusion of other protected class individuals who were deterred from applying because

of its insidious discriminatory job announcement language it attempted to mask that it applied to

all individuals regardless of color, race, religion, sex, and similar protected class members,

however, their inten[t] was otherwise and clearly illegal.”). And it concludes without explanation

that “New Century Foundation has violated the civil rights requirements that apply to recipients

of PPP loans, including 13 C.F.R. 112 and 113.”

This sentiment crescendos on the next page

when the SBA finally identifies the regulations that were (maybe) violated by the job posting:

This job posting seeking applicants with a “[s]trong commitment to race realism and white advocacy” appears to be a discriminatory employment practice that violates SBA’s civil rights requirements. See 13 C.F.R. 112.4 (prohibiting employment discrimination); 13 C.F.R. 112.7 (prohibiting action that subjects an individual to discrimination on the ground of race, color, or national origin, “in any employment practice, including recruitment or recruitment advertising”); 13 C.F.R. 113.3(b) (prohibiting discrimination regarding employment practices and prohibiting the “use of employment tests or criteria that discriminate based on race, color, . . . or national origin[”]).

Id. at 230.

11 In briefing before this Court, the Defendants repackage the above amalgamation of ideas

and statements. According to the Defendants, the SBA concluded that NCF has “an actual policy

of discriminating against non-white persons in making employment decisions.” Defs.’ Notice 4.

They assert that three facts in the administrative record support that conclusion: (1) that NCF

believes white people are superior to black people, (2) that NCF believes that white and non-white

people generally should remain separate, and (3) that NCF’s job posting shows that it applies its

racial beliefs in its hiring decisions. Id.; see also Defs.’ Mot. 14. Although the record supports

these three facts, the Court cannot agree that the SBA reached the conclusion the Defendants now

advance.

The SBA quoted several of NCF’s own articles espousing its beliefs that non-whites are

inferior and that it is best for society when races do not mix:

• “So long as black and whites continue to live together, whites will pay the high price of sharing society with an inveterately violent racial minority.” AR 225.

• “Our nation achieved character and greatness precisely because of discrimination[.] Id.

• “Our ancestors understood that people and races are not interchangeable, and that failure to discriminate would produce a warring mix of incompetents and unassimilables[.]’” Id.

• “Far-seeing whites should think carefully about arguments against discrimination in principle because discrimination . . . is necessary to our survival.” Id. 3

3 The SBA also cited publicly available reports by groups that had analyzed NCF’s publications. AR 215. The Southern Poverty Law Center found that NCF “purport[s] to show the inferiority of blacks to whites.” See, e.g., AR 70. And the Anti-Defamation League found that NCF “promotes pseudoscientific studies that attempt to demonstrate the intellectual and cultural superiority of whites,” AR 73; “promotes the work of other white supremacists,” AR 79; “publishes articles on the supposed decline of American society because of integrationist social policies,” AR 73; and “promotes the idea that racial segregation is ‘natural’ and society is best organized along racially homogenous lines,” id.

12 The SBA also pointed to NCF’s 2017 job posting as evidence that New Century relies on its views

on race in making hiring decisions. That posting stated that an “ideal applicant” would have a

“[s]trong commitment to race realism and white advocacy.” AR 56, 230. It also requested that

applicants submit a cover letter addressing the applicant’s “political views and how he came to

them,” as well as “[w]hy [the] applicant believes he would be a good fit for American

Renaissance.” AR 56–57, 228.

The problem for the Defendants is that the SBA’s decision did not tie its three factual

findings to the conclusion the Defendants now advance: that New Century has a policy of

discriminating in employment. And that is fatal. According to the Defendants, the SBA considered

the job posting in tandem with the robust evidence of NCF’s discriminatory views and concluded

that NCF “has an actual policy of discriminating in employment against non-white persons by

treating non-white persons worse in its hiring process—by either refusing to hire them at all, or

else at a minimum being less willing or likely to hire them than similarly situated white persons.”

Defs.’ Notice 1. But the SBA did not articulate such a broad conclusion. Instead, the agency found

that the job posting itself “appear[ed] to be a discriminatory employment practice that violate[d]

SBA’s civil rights requirements.” AR 230, 232. And it followed that statement with only

boilerplate recitations of SBA regulations, not factual or legal analysis plausibly linking that

posting to a broader policy or specific hiring decisions. Id. The SBA perhaps came closest to

drawing such a connection when it found that “NCF’s posting of its employment job

announcement and practices clearly aligned itself with the knowledge and beliefs consistent with

the organization’s mission, ‘race-realism’ and ‘white advocacy’ and separation of the races.” AR

228. And the Court agrees that the job posting demonstrates New Century’s commitment to its

views. But noting alignment between NCF’s views and hiring criteria in the job posting is not the

13 same as finding the existence or application of the sort of blanket discriminatory employment

policy the Defendants now claim was the basis for the denial of loan forgiveness.

In reviewing the validity of the SBA’s decision, the Court must assess the rationale the

SBA articulated. See Info Labs Inc. v. U.S. Citizenship & Immigr. Servs.,

, 424

(D.D.C. 2020) (“[I]t is well-established that an agency cannot fill the holes of [its] decision by

providing post hoc explanations in its briefs.” (cleaned up)); State Farm,

(“[C]ourts

may not accept . . . counsel’s post hoc rationalizations for agency action.” (citation omitted));

(“It is well-established that an agency’s action must be upheld, if at all, on the basis articulated by

the agency itself.”). Here, the SBA concluded that NCF’s job posting was itself a discriminatory

practice that rendered NCF ineligible for loan forgiveness. See AR 232 (NCF’s “job posting . . . is

determined to be a discriminatory employment practice that violates SBA’s civil rights policy,

rules, and regulations.”). The Defendants, however, have since disclaimed that argument, Defs.’

Notice 3 (“Defendants do not argue that the American Renaissance job posting . . . itself constitutes

a freestanding Title VI violation.”); Defs.’ Reply 5 (the Defendants do “not contend that the

posting is facially discriminatory”), so the Court need not address it. 4

The Court may “uphold a decision of less than ideal clarity if the agency’s path may

reasonably be discerned.” Amerijet, 753 F.3d at 1351–52. But it is not reasonably discernible from

4 In addition to concluding that NCF’s job posting was a “discriminatory employment practice,” the SBA found that NCF “also appears to be ineligible for a PPP loan because it restricts patronage for any reason other than capacity.” AR 230. The Defendants do not address this finding in their Motion for Summary Judgment, see ECF No. 26, nor have they responded to NCF’s assertion that the finding is an insufficient basis for upholding the SBA’s denial, Pl.’s Mot. 24. They have thereby conceded the argument. See Oceana,

(“[F]ailure to raise arguments or theories in [a] motion for summary judgment results in waiver of those arguments.”); see also Local Rule 7(b); Texas v. United States,

(D.C. Cir. 2015) (“[Local Rule 7(b)] is understood to mean that if a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.” (cleaned up)).

14 the SBA’s analysis that NCF violated Title VI because it “has an actual policy of discriminating

in employment against non-white persons.” Defs.’ Notice 1. Again, the language in the SBA’s

decision linking the single job posting to any broader discriminatory policy is too scant. See Spirit

Airlines, Inc. v. U.S. Dep’t of Transp.,

(D.C. Cir. 2021) (“Although our review

is inherently deferential, it is not satisfied by an agency decision that ignores an important aspect

of the problem before it or relies upon a threadbare explanation.”). Given that New Century views

non-white people as inferior and endorses and advocates for racial segregation, it may well be that

the organization does have a policy of discriminating in employment. Indeed, the SBA may reach

that conclusion and sufficiently articulate a basis for doing so on remand. But that conclusion

cannot “reasonably be discerned” from the SBA decision currently before the Court. See Amerijet,

. And it would be improper for the Court to uphold the SBA’s decision based

on “reasons or rationalizations other than th[ose] expressed by the agency.” See Toledo Hosp., 621

F. Supp. 3d at 26 (cleaned up). 5

REMEDY

New Century seeks both vacatur and a “permanent injunction preventing any further efforts

to collect amounts supposedly due under NCF’s loan, and directing a full refund of any amounts

paid by NCF under that loan, plus interest as permitted by law[.]” Compl., Prayer for Relief. ¶ (c).

The Defendants argue that

(b)(1) prohibits courts from issuing injunctions against

the SBA. See Defs.’ Mot. 27. That statute provides that “no attachment, injunction, garnishment,

5 The Court rejects New Century’s argument that the SBA could only find a Title VI violation with “proof of an adverse employment action” or harm to a specific individual, see Pl.’s Resp. to Defs.’ Notice 3. Cf. Int’l Bhd. of Teamsters v. United States,

(1977) (where an employer has “a sign reading ‘Whites Only’ on the hiring-office door,” an individual unwilling to “engage in a futile gesture” of applying “is as much a victim of discrimination as is he who goes through the motions of submitting an application”).

15 or other similar process, mesne or final, shall be issued against [the SBA] or [its] property.”

(b)(1). “Some courts have read the anti-injunction language in Section 634(b)(1)

literally and concluded that injunctive relief against the SBA is absolutely foreclosed.” Elk Assocs.

Funding Corp. v. U.S. SBA,

(D.D.C. 2012) (collecting cases). “[O]thers have

held that Section 634(b)(1) does not necessarily bar injunctions against the SBA in all

circumstances.” Am. Ass’n of Pol. Consultants v. U.S. SBA,

, 369 (D.D.C.

2020) (citation omitted). “The D.C. Circuit has yet to take a clear position on this issue[.]”

But

the Court need not decide the issue because an injunction is not warranted in this case.

The Supreme Court has explained that “post hoc rationalizations ‘have traditionally been

found to be an inadequate basis for review’ of agency decisions.” Alpharma, Inc. v. Leavitt,

(D.C. Cir. 2006) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe,

(1971)). And the Court has “approved the procedure of remanding so that an agency can

provide an explanation for an inadequately articulated decision.”

“Only in rare cases, when the

reviewing court is convinced that remand would serve no purpose, does the court direct the agency

how to resolve a problem.” Allina Health Servs. v. Sebelius,

, 1111 n.6 (D.C. Cir.

2014). This is not such a case. The Court will thus vacate and remand the SBA’s denial. The Court

expresses no view about whether the SBA could permissibly issue another denial on remand.

CONCLUSION

For the foregoing reasons, the Court grants New Century’s motion for summary judgment,

ECF No. 24, and denies the Defendants’ motion, ECF No. 26. A separate order will issue.

SPARKLE L. SOOKNANAN United States District Judge Date: September 29, 2025

16